[¶1]
Horace W. Salley III appeals from a judgment entered by the
court (Aroostook County, Hunter, J.) denying his
petition for post-conviction relief. Because, contrary to the
court's conclusion, Salley did not waive his challenge to
counsel's effectiveness regarding a specific
witness's testimony at trial, we vacate the judgment and
remand the matter for further consideration of that
post-conviction issue.

I.
BACKGROUND

[¶2]
In 2007, Salley was charged with gross sexual assault (Class
A), 17-A M.R.S. § 253(1)(A) (2016); assault (Class D),
17-A M.R.S. § 2O7(1)(A) (2016); and tampering with a
victim (Class B), 17-A M.R.S. § 454(1-B)(A)(1) (2016).
The State alleged that Salley had committed gross sexual
assault and assault against his wife in September, October,
or November 2006. A jury trial was held over the course of
three days in August 2008.

[¶3]
During the trial, Salley's wife testified that, at one
point, she had recanted; that is, she told others that she
was lying about her report of Salley's assault and gross
sexual assault. She testified that her recantation was not
the truth and that it was motivated by two considerations:
(1) she had been offered money in exchange for her refusal to
testify against Salley, and (2) she was afraid of Salley and
had their young child in her care.

[¶4]
In the presentation of his defense, Salley's attorney
called a Department of Health and Human Services caseworker
as a witness. As the attorney later testified at the
post-conviction hearing, his goal in calling this witness in
Salley's defense was to demonstrate that only after the
Department threatened Salley's wife with the termination
of her parental rights did she "recant" her
recantation and reassert her earlier statement that Salley
had assaulted her. Salley's wife had testified that in
January 2007, after she recanted her previous report of
assault and sexual assault, the Department removed her infant
child from her care pursuant to a preliminary protection
order entered in a child protection proceeding. In examining
the caseworker, Salley's trial counsel elicited testimony
that a petition for termination of parental rights to her
older child was also filed sometime after December 1, 2006.
In developing this testimony, Salley's trial counsel
intended to convince the jury that Salley's wife was not
a credible witness and that she had reasserted her
accusations against him only to appease the Department.

[¶5]
On cross-examination, the State inquired about the reasons
for the Department's involvement with the mother as to
the older child. The caseworker testified that the Department
had alleged neglect on her part because she had allowed the
child to have contact with Salley, who, due to his prior
behavior and his criminal history, was considered to pose a
risk to the child.

[¶6]
The court stopped the questioning at that point, brought
counsel to sidebar, and inquired about the propriety of
exploring Salley's criminal history. Salley's counsel
then objected to any hearsay. The court did not formally rule
on the objection that was made in response to the court's
questions at sidebar; Salley's counsel did not request a
curative instruction or move for a mistrial; and no further
questions on the subject were posed to the caseworker.

[¶7]
The jury found Salley guilty of all three crimes, and a
judgment of conviction was entered. With new counsel, Salley
appealed from the judgment, but he did not raise an argument
that the court had erred in its response to the
caseworker's testimony on cross-examination regarding
Salley's criminal history and involvement with the
Department. We affirmed the judgment in a memorandum of
decision. See State v. Salley, Mem-09-193 (Dec. 1,
2009).

[¶8]
On December 2, 2010, Salley filed a petition for
post-conviction review. The petition, as later amended,
challenged the effectiveness of both trial and appellate
counsel. Pertinent to the matter before us, Salley argued
that he had been deprived of the effective assistance of
trial counsel because trial counsel "opened the
...

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